b.g.bhattacharyaDisciplinary procedures: an introduction
Employers use disciplinary procedures to tell employees that their performance or conduct isn't up to the expected standard and to encourage improvement.
What is a disciplinary procedure?
A disciplinary procedure is sometimes the best way for your employer to tell you when something is wrong. It allows them to explain clearly what improvement is needed and should give you an opportunity to put your side of the situation.
Your employer must put their disciplinary procedure in writing, and make it easily available to you (for example, by giving details in the staff handbook). It should include the rules, what performance and behaviour might lead to disciplinary action, and what action your employer might take.
During a disciplinary procedure, if your employer does anything that seems unreasonable you should tell them (in writing) and suggest ways to solve the problem. They may decide to carry on the procedure anyway, in which case you might decide to use the issue as grounds for an appeal.
If you face disciplinary action, and aren't sure what to do, you can always get advice about your rights. Your local Citizens Advice Bureau (CAB) provide free and unbiased advice, and you may be able to get help from a union if you are a member.
Statutory minimum disciplinary procedures
By law, at present there are certain minimum steps that must be included in a disciplinary procedure - these are known as the 'statutory minimum procedures'. If your employer dismisses you without following this process, then if you make an unfair dismissal claim, the dismissal will normally be 'automatically unfair'. You normally need at least a year's service before you can make an unfair dismissal claim.
To find out more about the dispute resolution procedures in Northern Ireland visit the Department for Employment and Learning website.
Other reasonable steps
On top of the statutory minimum procedures, there are other steps that an employer would be expected to take in order to be reasonable. The Labour Relations Agency of a country or the Labour Relations Department in an organization produces a Code of Practice on disciplinary procedures.
You can't take your employer to an Industrial Tribunal because they haven't followed the Code but if you make an unfair dismissal claim the Code can be taken into account.
Disciplinary procedures in your employment contract
You employer can set out their own disciplinary procedures in your employment contract. However, your employer can’t disapply the statutory minimum disciplinary procedures. If your employer has laid down a disciplinary procedure that forms a part of your contract then you could sue for breach of contract if they haven't followed it.
Before taking formal disciplinary action, your employer may try to raise the matter informally with you first of all. This is often a good way of resolving a problem quickly.
Disciplinary procedures: meetings and decisions
When giving you the initial statement, or very soon after, your employer must invite you to a meeting to discuss the issues. The meeting is the second step in the statutory procedure.
Arranging the meeting
The meeting which is also known as a 'hearing' must happen before any disciplinary action is taken. If your employer hasn't explained in the statement the reasons why they have reason to discipline you, they have to explain this before the meeting. The meeting itself should:
· be arranged at a reasonable time for you and anyone else involved
· be in a private place, so there are no interruptions
· be at a time that has given you enough time to prepare.
If you don't think you've got enough time to prepare then ask your employer for more time. There's no specific minimum amount of time that your employer must give, but they should make sure you know what the meeting is for rather than say 'come into my office for a chat'.
Before the meeting, your employer should give you copies of any written evidence. You should normally be allowed to question any witnesses during the meeting but your employer can choose to make statements from colleagues who don't want to be identified and might prevent you from questioning witnesses.
If your employer has witnesses you should be allowed to bring your own witnesses, or produce witness statements. Prepare carefully, answering any points raised in the statement or further explanation from your employer. If you want you can write down what you want to say and read it out at the meeting.
At the meeting, your employer will explain the complaint and go through the evidence, you can then put your side of the story. You should:
· ask for copies of any notes of the meeting
· list the points you want to make
· listen to what your employer has to say, before giving your side
· remain calm, so you get your points over clearly.
If you can't attend the meeting, if you are off sick for example, your employer would be expected to rearrange the meeting at least once if possible. If you are still unable to attend then they can choose to hold the meeting in your absence. In this sort of situation you could try to send in a written statement or perhaps a representative who can explain your side of things.
Your right to be accompanied
You have a legal right to take someone to the meeting with you. This can be a colleague or trade union representative. If you're not a union member, and no colleague is willing to go with you, you can ask to bring someone else. However, if this isn't something agreed in your contract, your employer can refuse.
Your companion can take notes and speak instead of you, but may not answer questions for you. If your companion can't make the meeting, due to illness for example, your employer must postpone it by up to five days. If they refuse, you could consider making a claim to an Industrial Tribunal.
Either at the meeting or shortly after, your employer should tell you their decision. They may chose to tell you personally, but they should also confirm what they have told you in writing. Depending on the reason for the disciplinary action, the decision might be:
· no action
· a verbal warning
· a written warning
· a final warning
The outcome might also be anything else that could resolve the problem. For example an agreement to take part in mediation between yourself and a co-worker with whom you have had personal problems.
Your company's disciplinary procedure should include how many verbal or written warnings are needed before a final warning or dismissal. You should be given a written warning, or if the warning was verbal a written confirmation of it, saying what it was for and how long it will remain in force.
Your employer is allowed to give any type of warning that they think is appropriate. For example, in a case of theft or violence they might decide to go straight to a final warning - or even dismissal. Your employer should always try to act consistently, so if they would give others a verbal warning in a particular situation they shouldn't give you a final warning unless there are good reasons for doing so.
If you're given an official warning without an initial letter and meeting, you should appeal and explain why. This might happen if your employer has treated a simple telling off as an official verbal warning. Although the most common actions are warnings or dismissal, your contract may allow other penalties such as demotion, or suspension without pay. Your employer must not change your job description as a punishment, nor fine you, unless this is allowed by your contract.
Disciplinary procedures: initial letter, suspension and investigation
If your employer starts a disciplinary procedure against you they must follow a three-step procedure. The first step is a letter explaining your employer's reason for the action.
The first step in the statutory minimum procedure is a written statement by your employer that sets out the reason or reasons that has led them to consider disciplinary action. It may also explain the reasons why they believe they can discipline you.
Suspension from work
While the disciplinary or dismissal issue is being looked into, your employer may be able to suspend you. You should be told why you are being suspended.
If your employment contract allows you to be suspended without pay, your employer can do so, so long as they are acting reasonably. If your employment contract does not say that your employer can do this, your employer may still be able to suspend you, but with pay. To make it clear that this isn't a punishment, the suspension will be on full pay in most cases.
You keep your employment rights while suspended. If you don't get the right pay you may be able to make a claim to an Employment Tribunal for 'unlawful deduction from wages'.
While suspended, you may be told not to talk to other employees, customers and/or suppliers. If this stops you defending yourself, it may be grounds for appeal. It is up to you whether you listen to this but your employer may take further disciplinary action if you don't.
Your employer will need to investigate if there's a complaint against you and may ask you for a statement. The investigation should be unbiased, fair and reasonable. It should also seek to establish the facts and not just collect evidence against you. You should be given copies of any information that comes out of the investigation. If you decide you wish to resign from your employment, your employer can still choose to carry on with the disciplinary investigation if they wish.
Disciplinary procedures: appeals and what to do next
You must have grounds for your appeal and start the process within a certain period of time.
Your right to appeal
Your employer must notify you of your right to appeal the decision arrived at concerning your grievance. An appeal is the third step of the statutory grievance procedure and if you want to take your case to an Industrial Tribunal you must have appealed against the decision before making your claim. If you do not, any compensation you win may be reduced. You can appeal against the decision if you think:
· the decision was wrong
· unfair procedures were used
· the punishment is too harsh
· new evidence has come to light.
Your grounds for appeal should be reasonable. Minor breaches of procedures, or your personal feelings, won't usually change the decision that has been reached. The appeals process is similar to the disciplinary procedure:
· you write a letter giving reasons for appealing
· there's a meeting, usually with a more senior manager than was at the first meeting
· a final decision is made.
Make sure you know what the time limit is for appealing, which are often in the written procedures. If you're not given enough time to appeal, do what you can and provide any other necessary information later.
In small firms it may not be possible to find someone with higher authority than the person who took the original disciplinary decision. If this is the case, that person should act as impartially as possible when hearing the appeal and should use the meeting as an opportunity to review the original decision. You have the right to be accompanied to this meeting.
You can't make an Industrial Tribunal claim against a warning, although you could claim constructive dismissal if you decide to leave. A better approach is to suggest mediation or conciliation.
What if you're unhappy with the appeal decision?
If you don't accept the decision, you should first check to see if you have a further right of appeal. In some situations you can make a claim to an Industrial Tribunal. Possible grounds for making a claim include:
· unlawful discrimination in the procedure
· breach of statutory rights - for example, being disciplined for joining or refusing to join a trade union
· constructive dismissal, if you feel that you had to resign because of the action
· unfair dismissal.
You can also make a breach of contract claim through a civil court if your employer has broken the terms of your contract. The usual time limit for making a tribunal claim is three months. If the appeals process isn't completed within the normal time limit, the tribunal may extend it by a further three months. If you are unsure about the time limits, you should seek advice from an expert.
From Nepal, Kathmandu
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yogesh.shahI want to know whether even after recession can employer deduct salary on sales target basis? can employer resist to pay superannuation and provident fund after leaving the job cor certain reasons?
From India, Pune
Raj Kumar HansdahDear Friend
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